Citation Nr: 1717996
Decision Date: 05/23/17 Archive Date: 06/05/17
DOCKET NO. 11-22 885 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for chronic disability manifested by memory loss, cognitive decline, joint pain, and fatigue due to an undiagnosed illness.
2. Entitlement to an initial compensable evaluation for dacryocystitis, left eye.
3. Entitlement to an initial compensable evaluation for service-connected skin rash, prior to December 10, 2014 and an evaluation in excess of 10 percent thereafter.
REPRESENTATION
Appellant represented by: Lori Chism, Esq.
ATTORNEY FOR THE BOARD
M. M. Lunger, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1984 to June 1988 and from December 1990 to August 1991, with service in the Southwest Asia Theater of operations.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
This case was previously remanded by the Board in June 2014 and July 2016 for additional development.
The issues of entitlement to an initial compensable evaluation for dacryocystitis, left eye and entitlement to an initial compensable evaluation for service-connected skin rash, prior to December 10, 2014 and an evaluation in excess of 10 percent thereafter are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant and his representative if further action is required on his part.
FINDING OF FACT
The Veteran's complaints of memory loss, cognitive decline, joint pain and fatigue are, severally, of clear and specific etiology and diagnosis and do not comprise an undiagnosed illness or a chronic multisymptom disability.
CONCLUSION OF LAW
The criteria for a grant of service connection for an undiagnosed illness or chronic multisymptom disability manifested by memory loss, cognitive decline, joint pain and fatigue are not met. 38 U.S.C.A. §§ 1110, 1117, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.102, 3.317 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103 (a), 5103A; 38 C.F.R. § 3.159 (b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.
38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).
The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in December 2009. The letter addressed all of the notice elements and was sent prior to the unfavorable decision by the Agency of Original Jurisdiction (AOJ) in August 2010.
Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records (STRs), post-service treatment records, and VA examination reports. The November 2014 VA examination and September 2016 VA examinations and opinions are adequate for adjudication of the claim for a chronic disability manifested by memory loss, cognitive decline, joint pain, and fatigue due to an undiagnosed illness. The examiner had access to and reviewed the claims file. A physical examination of the Veteran was conducted and pertinent findings were reported including a determination that the Veteran did not have a chronic disability, manifested by the above specified symptoms, due to an undiagnosed illness.
The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of the responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.
The Board will therefore proceed to the merits of the Veteran's appeal.
Service Connection for an Undiagnosed Illness
The Veteran seeks service connection for an undiagnosed illness or chronic disability manifested by memory loss, cognitive decline, joint pain and fatigue which he contends is related to his wartime service in the Persian Gulf. Military records confirm that he is a Persian Gulf War Veteran with service in the Southwest Asia Theater of Operations.
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A.
§ 1117 and 38 C.F.R. § 3.317. Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of Operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1).
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.
An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117;
38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).
A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means "a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii).
"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R.
§ 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).
For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Veteran's service treatment records (STRs) do not reflect that he was treated for symptoms of any unknown etiology, nor was he diagnosed with a medically unexplained multisymptom illness while he was in service.
In June 2010 the Veteran underwent a VA Gulf War Guidelines examination. The Veteran complained of experiencing decreased cognitive function in the past few years; he reported feeling as though he did not have as good a short-term memory recall as he had in the past. He reported no precipitating or aggravating factors, no history of seizures, no headaches or dizziness, and no history of brain surgery. The Veteran also reported experiencing a gradual onset of fatigue over the past several years. He did not report general muscle aches or weakness, chronic headaches, or migratory joint pain. The Veteran did report a history of depression, sleep disturbance and snoring which wakes him up often at night. The Veteran complained of experiencing weakness, stiffness and lack of endurance, as well as experiencing joint pain in his knees and ankles. He did not report experiencing instability, giving way, locking, effusion, dislocation or subluxation. Physical examination revealed some tenderness in the medial aspects of both knees. Knee range of motion was from 0 degrees to 130 degrees; with no change in range of motion between active, passive and repetitive range of motion testing. Mini-mental status examination score was 30 out of 30. The examiner reported negative examination findings as to the following conditions: undiagnosed illness; chronic fatigue syndrome; a diagnosable medically unexplained chronic multisymptom illness of unknown etiology; and/or a diagnosable chronic multisystem illness with a partially explained etiology. The examiner opined that the Veteran did not have any diagnosable illnesses related to Gulf War syndrome; did not have any diagnosable, but medically unexplained chronic multisystem illnesses of unknown etiology; nor any diagnosable chronic multisystem illness with partially explained etiology. The examiner opined that the Veteran's symptoms each had a clear and specific etiology and were not related to his Gulf War service. The examiner's rationale for his opinion was that the Veteran did not experience memory loss, cognitive decline, chronic fatigue or pronounced joint pain while he was in service, nor within the presumptive period following his discharge from service. In its June 2014 decision, the Board determined this opinion was inadequate because the rationale was based on inaccurate factual premises; that an undiagnosed illness, or signs and symptoms of such, must manifest during service and that the presumptive period for service connection had expired. The matter was remanded for a new examination.
The Veteran underwent a VA Gulf War General Medical examination in November 2014. The examiner noted that, based on both a review of the record and an examination of the Veteran, neither chronic fatigue nor any fibromyalgia conditions had been diagnosed. However, the examiner did not address the Veteran's reported medical history, specifically the June 2010 VA examination, in which the Veteran reported a history of joint pain, memory loss and fatigue. Therefore, the Board determined that the November 2014 examination was inadequate and remanded the matter for a new VA examination and opinion.
In September 2016, the Veteran underwent a VA Gulf War general medical examination. The examiner indicated that he examined the Veteran and reviewed the electronic file. The Veteran reported experiencing symptoms of joint pain, fatigue, and cognitive impairment since 2009. He reported that he tired easily after strenuous activity such as mowing the lawn. The Veteran stated he had not had a good night sleep since 2008, due to PTSD symptoms and sleep apnea which was diagnosed in 2011. The Veteran reported that he could not tolerate the CPAP machine he was prescribed for sleep apnea. The Veteran reported he is unable to sleep for more than four hours per night. The examiner noted that upon further questioning, the Veteran described his sleep pattern as "not too bad - some nights good." He reported that he sometimes has nightmares and bad dreams, and sometimes takes a nap during the day.
The examiner documented that the Veteran's symptoms of fatigue and abnormal sleep pattern are consistent with sleep apnea and PTSD. Additionally, the examiner stated that the Veteran's symptoms of cognitive impairment are also consistent with PTSD and ulcerative sleep apnea. The examiner determined that the Veteran's fatigue has a clear and specific etiology and diagnosis and is not part of a medically unexplained chronic multisymptom illness of unknown etiology. The examiner determined that it is less likely than not that the Veteran's fatigue is caused by or is a result of Southwest Asian exposure during the Gulf War and was not aggravated by military service. The examiner based his opinion on the fact that the Veteran's current condition is not consistent with symptoms of chronic fatigue syndrome. The Veteran has not been diagnosed with a chronic fatigue syndrome. Notably, the examiner stated that symptoms of sleep disturbance, cognitive impairment/impaired memory or concentration are consistent with the Veteran's diagnoses of PTSD and obstructive sleep apnea.
With regard to the Veteran's complaints of joint pain, the examiner determined that the Veteran's joint pain is secondary to degenerative joint disease which is an age related condition. The Veteran's joint pain has specific and clear etiologies and is not part of a medically unexplained chronic multi-symptom illness of unknown etiology. The examiner determined that it is less likely than not that the Veteran's joint pain is caused by or a result of Southwest Asia exposure during the Gulf War, and was not aggravated by military service.
Finally, as to the Veteran's complaints of cognitive impairment, the VA examiner noted that cognitive impairment has a clear and specific etiology and diagnosis and is not part of a medically unexplained chronic multisymptom illness of unknown etiology. The examiner determined that it is less likely than not that the Veteran's cognitive impairment is caused by or a result of his Southwest Asia exposure during the Gulf War and was not aggravated by military service. The examiner opined that cognitive impairment is associated with medications used for treatment of the Veteran's service-connected PTSD, such as valprioc acid, and due to his sleep disturbance secondary to sleep apnea.
Additionally, in September 2016, the Veteran underwent a VA review PTSD examination. An opinion was obtained from the VA examiner regarding the Veteran's complaints of memory loss and cognitive decline. The examiner determined that it is as likely as not that these symptoms are due to the Veteran's PTSD and major depressive disorder. The examiner reported that his assertion was supported by the Veteran's social/industrial history, current mental status and objective personality and cognitive measures.
Thus, the VA examiners have determined that the symptoms the Veteran experiences are symptoms of his PTSD and sleep apnea. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Additionally, the VA examiners have opined that the Veteran's symptoms are of "clear and specific etiology and diagnosis;" pointing out that the Veteran's complaints of joint pain and fatigue are of a known physical etiology, and his complaints of memory loss and cognitive decline are due to PTSD and major depressive disorder.
A review of the electronic file reveals that the examiners' opinions are consistent with the medical evidence of record. VA and private medical records (including radiology records) show diagnoses of and treatment for PTSD and sleep apnea, with complaints of memory loss and sleep disturbance.
To the extent that the Veteran's statements are offered as a nexus opinion, that is, an association between his complaints and his Persian Gulf service, while the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, see Barr v. Nicholson, 21 Vet. App. 303 (2007), and under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Veteran, as a lay person, is not competent to offer a nexus opinion with regard to his complaints and their connection to active service, as this is a complex question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board therefore finds that the Veteran's opinion as to an association between his current complaints and his service is beyond his lay capacity and is of no probative weight. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's responsibility to assess the probative value of all medical and lay evidence).
To the extent that the Veteran's statements are offered as a medical diagnosis of a medically unexplained chronic multisymptom illness, the Board again notes that no factual foundation has been established to show that he is qualified through specialized knowledge, education, training, or experience to offer a medical diagnosis or opinion; particularly where, as here, there is competent medical evidence to the contrary. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Jandreau.
For these reasons, the Board therefore finds that the preponderance of the probative evidence of record weighs against the claim of service connection, and the benefit-of-the-doubt doctrine does not apply. Gilbert, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107 (b)); 38 C.F.R. § 3.102.
ORDER
Entitlement to service connection for an undiagnosed illness or chronic multisymptom illness manifested by memory loss, cognitive decline, joint pain, and fatigue, is denied.
REMAND
While the Board regrets the delay, the Board finds that a remand is necessary with regard to the issues of entitlement to increased evaluations for the Veteran's service-connected dacryocystitis, left eye and skin condition. These claims must be remanded for issuance of a statement of the case (SOC). The claims were adjudicated in an October 2016 rating decision. The Veteran filed a notice of disagreement (NOD) through his representative in November 2016 and no SOC has been issued. Under such circumstances, the Board shall remand these claims to the AOJ with instructions to prepare and issue an SOC. See 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also 38 C.F.R. § 20.201 (in effect since March 24, 2015).
Accordingly, the case is REMANDED for the following action:
Issue the Veteran an SOC with respect to the claims of service connection for hypertension; a prostate disability; and sleep apnea. This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal on the issues. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order.
The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
G. A. WASIK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs